'Improper Publicizing of Court Proceedings. Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, are calculated to detract from the essential dignity of the proceedings, degrade the court, and create misconceptions with respect thereto in the mind of the public, and should not be permitted.'

Since I am in agreement with this Canon of the American Bar Association, the restraining order issued did not interfere with the order or regulation of the Westmoreland County Court as it related to the taking of photographs in the courtroom of any judge, or places in such close proximity thereto as to interfere with the orderly proceedings of the court, in the conduct of trials actually in progress.

The freedom of the press guaranteed by the Constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. Thornhill v. State of Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093.

The jurisdiction of the District Court over this action is founded on the Act of Congress of June 25, 1948, c. 646, Section 1, 62 Stat. 932, 28 U.S.C.A. § 1343, which provides in part as follows:

'Civil rights. The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. * * *'

Freedom of speech and of the press are among the civil rights to which this jurisdictional statute extends. Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423.

Said Act of Congress was promulgated by virtue of Section 5 of the Fourteenth Amendment to the Constitution of the United States which provides Congress shall have power to enforce, by appropriate legislation, the provisions of this Article. Said Article provides, as it applies to the matters involved in this proceeding, as follows:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

A state may act through different agencies, either by its legislative, its executive, or its judicial authorities; and the prohibitions of the Fourteenth Amendment to the Constitution of the United States extend to all action of the State denying equal protection of the laws, whether it be action by the legislative, executive or judicial branch of the State government. Congress may enforce the prohibitions whenever they are disregarded by any branch of the State government. The mode of enforcement is left to the discretion of Congress.

Since the state, for present purposes, can only act through functionaries, the question naturally arises what functionaries, acting under what circumstances, are to be deemed the state for purposes of bringing suits in the Federal Courts on the basis of illegal state action. The problem is beset with inherent difficulties, and not unnaturally has had a fluctuating history in the decisions of the court. It is not to be resolved by abstracting considerations such as the fact that every official who purports to wield power covered by a state is pro tanto the state. Otherwise every illegal discrimination by a policeman on the beat would be state act for the purpose of suit in a Federal Court. My question is not whether a remedy is available for such an illegality, but whether it is available in the first instance in a Federal Court. Such a problem of federal judicial control must be placed in the historic context of the relationship of the Federal Courts to the states, with due regard for the natural sensitiveness of the states, and for the appropriate responsibility of state courts to correct the act of lower state courts and state officials. Snowden v. Hughes, 321 U.S. 1, 16, 17, 64 S. Ct. 397, 88 L. Ed. 497.

I believe the order and regulation promulgated by the Westmoreland County Court was issued under color of state law. It further appears that a custom or usage existed in the Courts of Westmoreland County, Pennsylvania, prior to the adoption of said order or regulation in which photographers were permitted to take pictures of any person in the court house where the business of the court was conducted other than in the courtroom or in the area in close proximity thereto while a member of the court was in session or involved in the trial of a proceeding.

It is provided by statute in Pennsylvania:

'Each of the said courts (of Common Pleas) shall have full power and authority to establish such rules for regulating the practice thereof respectively, and for expediting the determination of suits, causes and proceedings therein, as in their discretion they shall judge necessary or proper: Provided, That such rules shall not be inconsistent with the Constitution and laws of this commonwealth.' Act of 1836, P.L. 784, section 21, 17 P.S.Pa. § 2076.

Resolving the problem of trying to reconcile the various decisions, I conclude since the order and regulation presented for adjudication was promulgated under color of state authority or law, it is the duty of the court of stay the proceeding in this Court pending a determination by the Supreme Court of Pennsylvania.

In the taking and publication of photographs, the law has recognized the privilege of privacy which reposes certain limitations upon the freedom of the press. 16 C.J.S., Constitutional Law, § 213, page 630.

Not only has the federal government provided constitutional safeguards for the preservation of a free and untrammeled press, but the states, too, have jealously and zealously enacted similar constitutional insulation from external assaults upon this precious freedom. The Pennsylvania Constitution, P.S., gives firm expression to a free press.

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